Berry v. Demings, Case No: 6:11-cv-1740-Orl-36KRS
| Decision Date | 22 August 2013 |
| Docket Number | Case No: 6:11-cv-1740-Orl-36KRS |
| Parties | BRIAN BERRY, JERMARIO ANDERSON, REGINALD TRAMMON and EDWYN DURANT, Plaintiffs, v. JERRY DEMINGS, TRAVIS LESLIE, KEITH VIDLER, DAVE OGDEN, JOHN DOES 1 - 10, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause comes before the Court on four motions for summary judgment on Plaintiffs Brian Berry, Jermario Anderson, Reginald Trammon, and Edwyn Durant's ("Plaintiffs") Amended Complaint: (1) Defendant Dave Ogden's ("Defendant Ogden") Motion for Summary Judgment (Doc. 93); (2) Defendant Keith Vidler's ("Defendant Vidler") Motion for Summary Judgment (Doc. 94); (3) Defendant Travis Leslie's ("Defendant Leslie") Motion for Summary Judgment (Doc. 95); and (4) Defendant Jerry Demings' ("Defendant Demings") Motion for Summary Judgment (Doc. 96).1 Plaintiffs filed responses in opposition to each Motion for Summary Judgment (Docs. 98-101), and Defendants replied in further support of their Motions (Docs. 104-107). Having determined that oral argument is unnecessary, this matter is ripe for review. Upon due consideration of the parties' submissions, including deposition transcripts, affidavits, memoranda of counsel and accompanying exhibits, and for the reasons that follow, theCourt will grant the motions of Defendants Ogden and Demings. The motions of Defendants Vidler and Leslie will be granted in part and denied in part.
This case arises from an unannounced, warrantless inspection of Strictly Skillz Barber & Salon ("Strictly Skillz"), a barbershop located near the Pine Hills neighborhood in Orlando, Florida, conducted by officers of the Orange County Sherriff's Office ("OCSO") and representatives from the Florida Department of Business and Professional Regulation ("DBPR") on August 21, 2010. See Doc. 87, ¶¶ 8, 35. According to a post-operation report prepared by the DBPR, the inspection of Strictly Skillz was part of a larger "sweep operation" of nine barbershops and cosmetology salons in the Pine Hills area conducted on the same date. Doc. 98-6 (the "DBPR Report"), pp. 21-22. Plaintiff Brian Berry ("Plaintiff Berry"), an African-American male, is the sole owner of Strictly Skillz. Doc. 93-2, Deposition of Brian Berry ("Berry Dep."), pp. 12-13; Doc. 139, ¶ 3. Plaintiff Berry is a licensed barber and has been operating Strictly Skillz since 2007. Berry Dep., pp. 10, 12-13. Plaintiffs Edwyn Durant ("Plaintiff Durant"), Reginald Trammon ("Plaintiff Trammon"), and Jermario Anderson ("Plaintiff Anderson") are African-American males who have worked as licensed barbers at Strictly Skillz since 2007. Id. at 12-13; Doc. 93-3, Deposition of Jermario Anderson ("Anderson Dep."), pp. 9, 12; Doc. 93-4, Deposition of Edwyn Durant ("Durant Dep."), pp. 11, 14; Doc. 93- 5, Deposition of Reginald Trammon ("Trammon Dep."), pp. 8, 10; Doc. 139, ¶¶ 4-7. Plaintiffs Durant, Trammon, and Anderson each rent a barbering chair in Strictly Skillz from Plaintiff Berry for a weekly fee, and they retain the proceeds they receive from their customers. Berry Dep., p. 14.
The impetus for the sweep operation was a chance encounter at the Pine Hills Shopping Center between Defendant Vidler, a corporal with OCSO who was working an off-duty assignment, and Amanda Fields ("Inspector Fields"), an inspector with the DBPR who was conducting an inspection of a barbershop. See DBPR Report, p. 15. DBPR inspectors are tasked with conducting inspections of barbershops and cosmetology salons to ensure compliance with barbershop laws and regulations. Id. During her conversation with Defendant Vidler, Inspector Fields described difficulties and resistance she had encountered while conducting inspections. Id. She expressed safety concerns and described evidence of criminal activity she had witnessed involving weapons and narcotics. Id. Because DBPR is not empowered by the legislature to take law enforcement action, DBPR relies on local law enforcement to enforce violations of state law. Id. Defendant Vidler agreed to accompany Inspector Fields in an inspection at the Pine Hills Shopping Center, which resulted in the issuance of citations. Id. Afterward, Defendant Vidler conducted research on Fla. Stat. § 476.194, which provides that barbering without an active license is a second-degree misdemeanor.3 Id. at 16. Over the next two months, heremained in communication with Inspector Fields regarding the potential for joint operations between DBPR and OCSO, and expressed his desire to assist DBPR inspectors in barbershop inspections. Id.
On August 5, 2010, OCSO officers met with representatives of the DBPR Division of Regulation to discuss illegal activities taking place in local barbershops and cosmetology salons in the Pine Hills area, including violent shootouts, gambling, and narcotics sales and consumption. Id. at 17. The DBPR representatives explained the difficulties they encountered in their inspections, given their inability to take law enforcement action. Id. At the meeting, OCSO officers and DBPR representatives made initial plans for a joint "sweep operation" on August 21, 2010, to visit certain barbershops, which had previously resisted, failed to cooperate with, threatened, or assaulted DBPR inspectors. Id. at 17-20. Strictly Skillz was included in the list of barbershops to be inspected because Olvie Demosthene, an inspector with the DBPR ("Inspector Demosthene"), had conducted two inspections in 2007 in which Strictly Skillz barbers wereobserved operating without a barbering license and they refused to produce their licenses. Id. at 18-19.
Upon learning about the problems faced by DBPR inspectors, Defendant Ogden—a captain with OCSO—tasked his staff with researching the issues, legal precedents, and OCSO policies and procedures. Id. at 20. Defendant Ogden's staff contacted representatives of the State Attorney's Office ("SAO") to ensure that SAO would cooperate with any prosecutions resulting from the sweep operation. Id. The operation was also discussed with the Legal Section of OCSO prior to implementation. Id. Based upon these discussions, OCSO and DBPR decided that they had a sufficient basis to proceed with the sweep operation. Id.
After the August 5, 2010 meeting, OCSO and DBPR representatives continued to communicate with regard to the sweep. Id. at 20-21. On August 19, 2010—two days before the sweep operation—DBPR inspectors conducted walkthroughs of approximately six barbershops, including Strictly Skillz, in preparation for the sweep. Id. at 21; Berry Dep. pp. 60-61. The inspectors gathered intelligence on the number of exits, people, and barbering stations at the barbershops. DBPR Report, p. 21.
Defendant Vidler prepared an "Operations Plan" for the sweep. Id. at 23; Doc. 139; ¶ 1. The Operations Plan provided for two teams to visit the various barbershops in the Pine Hills area that were the subjects of the sweep. DBPR Report, p. 24. Each team would consist of one supervisor, one narcotics agent, one plain clothes deputy, three uniformed deputies and 2 DBPR agents. Id. The plain clothes deputy was to enter the barbershop first, for "visual aid only" and to conduct "passive surveillance." Id. The DBPR agents would then enter and attempt to identify unlicensed barbers. Id. Once DBPR identified an unlicensed barber, OCSO deputies would arrest the individual for violating Fla. Stat. § 476.194. Id. In addition, the teams wereprepared to handle contraband, gather intelligence, and interview possible confidential informants. Id.
On August 21, 2010, seven DBPR employees and 14 OCSO officers conducted the sweep of nine barbershops in the Pine Hills area, including Strictly Skillz. Id. at 21-22. Defendant Vidler, Defendant Leslie (an OCSO deputy), Inspector Fields, and at least five other OCSO officers were present during the inspection of Strictly Skillz. Doc. 98-2, pp. 5-7. OCSO officers did not obtain a search warrant prior to arriving at Strictly Skillz. Doc. 94-1, Affidavit of Keith Vidler ("Vidler Aff."), ¶ 6. Five or six barbers were on duty at the time the officers first arrived, and there were ten to 25 customers in the store. Berry Dep., pp. 69, 115; Anderson Dep., pp. 46, 55; Durant Dep., pp. 54-55; Trammon Dep., p. 59.
Plaintiff Anderson was cutting a customer's hair when he noticed a "whole bunch" of police cars pull into the parking lot and a "whole bunch" of OCSO officers "rush in."4 Anderson Dep., p. 48. Some of the officers were wearing masks and bulletproof vests and had their guns drawn. Id. at 49-52; Durant Dep., pp. 56, 64-65, 68; Trammon Dep., p. 85. Inspector Fields also entered with the OCSO officers. Anderson Dep., p. 52; Durant Dep. p. 59; Trammon Dep., p. 61. Plaintiff Trammon was on the phone and had a customer in his chair when eight to ten officers walked in the door and told him to hang up the phone and put his hands behind his back.5 Trammon Dep., pp. 60-62. His hands were then immediately placed in plastic "zip ties" by two female officers. Id. at 63-64. Plaintiff Durant had just finished with a customer and was walking behind the customer to the front of the store when officers "rushed in like the SWATteam." Durant Dep., pp. 53, 56. One officer immediately asked Plaintiff Durant if he worked in the store, and when Plaintiff Durant responded affirmatively, the officer instructed him to "sit down and shut up," and Plaintiff Durant sat down in a chair. Id. at 56-58. The officer "scream[ed]" for everybody to get out and that the shop was "closed down indefinitely." Id. at 57-58. The officers forced all customers, with the exception of one, to leave the shop. Berry Dep., p. 70; Anderson Dep., p. 55; Durant Dep. p. 58; Trammon Dep., p. 65. Officers blocked off the parking lot of the shopping center, so that cars and individuals could not exit or enter. Durant Dep., pp. 37-38, 71, 102-03.
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